Decision Date: 00/00/00 Archive Date:
10/25/95
DOCKET NO. 93-25 378 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to an effective date earlier than December 5,
1990, for a 100 percent rating for bilateral eye disability
and special monthly compensation for bilateral blindness.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran had active service form September 1968 to July
1969.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Muskogee,
Oklahoma.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that his bilateral blindness has been
indicated on all medical reports, including those dated
earlier than 1992, and contends that he should receive
retroactive benefits back to 1984 because that is when he
filed for increased compensation. He states that the claim
for increase was filed again in 1990 and a third time in
1992 and that in fairness, a retroactive increase should be
considered at least back to 1984.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claim of entitlement to an effective date
earlier than December 5, 1990, for a 100 percent rating for
bilateral eye disability and special monthly compensation
for bilateral blindness.
FINDINGS OF FACT
1. In an unappealed July 1984 rating decision, the RO
assigned a 70 percent rating for the veteran's bilateral eye
disability and continued special monthly compensation under
38 C.F.R. § 3.350(a) on account of blindness of one eye.
2. December 5, 1990, the date of a VA outpatient
examination report, is the earliest date that it is
factually ascertainable that the veteran had increased
disability warranting a 100 percent schedular rating for
bilateral eye disability and special monthly compensation
for bilateral blindness under 38 C.F.R. § 3.350(f)(2)(ii),
and is also the date of receipt of a claim for increased
compensation.
CONCLUSION OF LAW
The proper effective date for a 100 percent schedular rating
for bilateral eye disability and special monthly
compensation under 38 C.F.R. § 3.350(f)(2)(ii) is not
earlier than December 5, 1990. 38 U.S.C.A. § 5110(West
1991); 38 C.F.R. § 3.400(o)(2) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In a July 1984 rating decision, based on consideration of
the results of a May 1984 VA eye examination, the RO
determined that a 70 percent rating was the proper rating
for the veteran's bilateral eye disability and continued
special monthly compensation under 38 C.F.R. § 3.350(a) on
account of blindness of one eye. The veteran did not
appeal, and under the provisions of 38 U.S.C.A. § 7105 (West
1991) that decision became final in the absence of clear and
unmistakable error. Neither the veteran nor his
representative has alleged that the July 1984 rating
decision was clearly and unmistakably erroneous. In March
1992, the veteran's representative submitted a VA Form 21-
4138 to the RO requesting reevaluation of the veteran's
bilateral eye disability and enclosed a photocopy of a VA
outpatient eye examination report dated December 5, 1990.
The veteran underwent a VA compensation examination in April
1992, and in a May 1992 rating decision the RO continued the
70 percent rating for the veteran's bilateral eye
disability. In September 1992 the veteran furnished a copy
of a July 1992 VA examination report and again requested an
increased rating. The veteran then underwent a VA
compensation examination in October 1992. In a November
1992 rating decision, the RO granted a 90 percent rating for
the veteran's bilateral eye disability effective July 1992
with an increase to a 100 percent rating effective September
1992. In the same rating action, the RO determined the
veteran was entitled to special monthly compensation for
bilateral blindness under 38 C.F.R. § 3.350(f)(2)(ii),
effective September 1992. The veteran appealed arguing the
effective date for the increased compensation should be
1984, or at least 1990.
In a May 1993 rating decision, the RO considered the results
of the December 1990 VA outpatient eye examination, found
clear and unmistakable error in the November 1992 rating
action and awarded the 100 percent rating for bilateral eye
disability and special monthly compensation for bilateral
blindness effective December 5, 1990, the date of the VA
outpatient eye examination report. The veteran continued
his appeal, arguing that the increased compensation should
have been awarded from May 1984.
The effective date of an award based on a claim for
increased disability compensation shall be the earliest date
as of which it is factually ascertainable that an increase
in disability occurred if the claim is received within one
year from such date, otherwise the effective date shall be
the date of receipt of the claim. 38 U.S.C.A. § 5110; 38
C.F.R. § 3.400(o)(2). As noted earlier, VA Form 21-4138
indicating the veteran was seeking increased disability
compensation, along with the December 5, 1990, VA outpatient
eye examination report, was received at the RO in March
1992. Although the December 5, 1990, report indicating
increased disability warranting the 100 percent rating and
additional special monthly compensation was not received
until March 1992, it will, under the provisions of 38 C.F.R.
§ 3.157(b)(1) (1994), be accepted as the date of receipt of
the veteran's claim for increased benefits. December 5,
1990, is, therefore, the proper effective date for the award
of increased compensation benefits.
ORDER
An effective date earlier than December 5, 1990, for a 100
percent rating for bilateral eye disability and special
monthly compensation for bilateral blindness is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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